Docket: IMM-1172-14
Citation:
2015 FC 726
Toronto, Ontario, June 9, 2015
PRESENT: The
Honourable Madam Justice Strickland
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BETWEEN:
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KAJENDRAN
ALAHAIYAH, SINTHANA KAJENDRAN
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Applicants
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and
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THE MINISTER OF
CITIZENSHIP OF IMMIGRATION
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Respondent
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JUDGMENT AND REASONS
[1]
This is the judicial review of the decision of
the Refugee Protection Division of the Immigration and Refugee Board (RPD) dated
January 29, 2014, in which it concluded that the Applicants are not Convention
refugees or persons in need of protection pursuant to sections 96 or 97,
respectively, of the Immigration and Refugee Protection Act, SC 2001, c
27 (IRPA). This application is brought pursuant to section 72 of the IRPA.
Background
[2]
The Applicants, Alahaiyah Kajendram (Applicant)
and Sinthana Kajendran (Female Applicant), claim that on 25 December 2010 the
Applicant was abducted by men in a white van. The men said that they were EPDP
and that they knew that the Applicant’s father was in Germany and that his
brother was in Canada. They demanded money for the Applicant’s release. The
men hit the Applicant and threatened to kill him if the money was not paid.
The Applicant was released when the demanded sum was paid. After speaking
with his family about the situation, arrangements were made for him to flee Sri
Lanka using an agent.
[3]
In January 2011 the Applicants eloped. As they
are from different castes their relationship was problematic. Prior to their
elopement the Female Applicant had been locked in her room for five days by her
mother and sister, who threatened and beat her. When the Female Applicant told
her mother that she would not marry the Applicant; her family agreed to allow
her to go to school, at which point the pair eloped. In February 2011 the
Female Applicant’s five uncles and four cousins came to the Applicant’s home.
They were armed with knives and swords and wanted the Applicant to come out.
His mother argued with them, neighbours came in aid and the uncles and cousins
left.
[4]
On March 3, 2011 the Applicants went to Colombo to
make arrangements to leave the country. The Applicant left on March 29, 2011.
The Female Applicant remained behind and later learned that she was pregnant.
She returned to her mother and sister, who beat her and forced her to take abortion
tablets so she could start a new life with a man of her own caste. She then
left her mother’s home and lived with the Applicant’s mother until she departed
Sri Lanka on August 29, 2011, with the assistance of an agent.
[5]
The Applicants together travelled through
various countries and arrived in the United States (US) on June 3, 2013, where
they filed a claim for asylum. They travelled to Canada on August 15, 2013 and
submitted a claim for refugee protection.
Decision Under Review
[6]
The RPD found that the determinative issues were
credibility and generalized risk. It did not accept the Applicants’
allegations as to what had occurred in Sri Lanka leading to their flight to
Canada. The RPD noted that when the Applicant made his refugee claim at the
port of entry (POE) he was asked why he was seeking protection in Canada. His
response was that it was because of his marriage to a person of a different
caste. He made no mention of being detained by the EDPD. The RPD did not
accept his explanation for this, being that there were a lot of questions at
the POE and that he was scared. It did not believe that he would omit
mentioning that he had been kidnapped by the EDPD, held for three days,
threatened and abused. This was a significant omission, particularly as he now
claimed that it was the reason for his flight. The RPD concluded, on a balance
of probabilities, that the abduction did not occur.
[7]
The RPD noted that the Female Applicant alleged
fear of the army, government and Tamil groups connected with government, yet
her testimony was that she had no experiences with those groups. The RPD did
not find it credible, given the prior events that she had described, that her
family would have allowed her to remain with her husband’s mother until her
departure from Sri Lanka. It did not accept her explanation that her relatives
came to that home but left when asked to do so by her mother-in-law.
[8]
The RPD stated that the Applicants had failed to
persuade it, on a balance of probabilities, that they were generally credible or
trustworthy witnesses.
[9]
The RPD also found that the Applicants’ fear, as
identified at the POE, was of the Female Applicant’s family members, who did
not approve of the marriage. Family difficulties and vendettas are not a link
to a Convention nexus.
[10]
As to the Applicant’s alleged fear of returning
because they are young Tamils from the north of Sri Lanka who would be targeted
and face persecution upon return, the RPD discussed the documentary evidence and
ultimately agreed with the UK Operational Guidance Note which found that
although ill treatment, including torture, of some individuals returning to Sri
Lanka occurred, applied only to certain categories of individuals because of
their profile or by cumulative risk factors and that this did not mean that
Tamils in general would be at risk on return to Sri Lanka. The RPD found that
in the Applicants’ particular circumstances their personal profiles are not
ones that would cause them to be viewed or targeted with suspicion by the Sri
Lankan authorities. Accordingly, they had not satisfied their burden of
establishing a serious possibility that they would be persecuted or that they
would be personally subjected to risk of death or a risk of cruel and unusual
punishment or danger of torture by any authority in Sri Lanka.
[11]
The RPD also stated that even if it believed
that the Applicant had been kidnapped by the EDPD, the extortion of money is a
generalized, not a personal risk. The documentary evidence indicated that
crime, including extortion by the kidnapping of persons who are wealthy or are
so perceived by rogue elements of the government security forces and
paramilitaries who have turned to criminality in efforts to consolidate their
revenue sources, is a problem in Sri Lanka. Therefore, this would be a
generalized and prevalent risk faced by that subgroup of the general population
and, pursuant to s 97(b)(ii), the Applicant was not a person in need of
protection.
[12]
Further, as to their fear of the Female
Applicant’s family, there was nothing before the RPD to suggest that the
Applicants could not relocate somewhere else in Sri Lanka or file a complaint
with the police. Their allegations that the police would not take a complaint seriously
had not been tested.
Issues
[13]
In my view the issues can be formulated as
follows:
i.
Were the RPD’s credibility findings reasonable?
ii.
Did the RPD fail to consider relevant evidence
or the Applicant’s claims on the basis of cumulative grounds or mixed motives?
iii.
Did the RPD err in its analysis of
the issue of generalized risk?
iv.
Did the RPD apply an incorrect test for its s 96
risk assessment?
Standard of Review
[14]
It is well established that the RPD’s findings
on credibility are reviewable on the standard of reasonableness (Kazan v
Canada (Citizenship and Immigration), 2012 FC 1373 at para 20; Pathmanathan
v Canada (Citizenship and Immigration), 2012 FC 519 at para 29).
[15]
Findings on generalized risk are likewise reviewable
on the standard of reasonableness (Servellon Melendez v Canada (Citizenship
and Immigration), 2014 FC 700 at paras 21-22, Galeas v Canada
(Citizenship and Immigration), 2015 FC 667 at paras 37-39).
[16]
Reasonableness is concerned with the
justification, transparency and intelligibility of the decision-making process
and also with whether the decision falls within a range of possible acceptable
outcomes defensible in respect of the facts and law (Dunsmuir v New
Brunswick, 2008 SCC 9 at para 47 [Dunsmuir]). On that standard the
reviewing Court will interfere with the decision only if it falls outside that
range (Dunsmuir at paras 47-49; Canada (Citizenship and Immigration)
v Khosa, 2009 SCC 12 at paras 45-46, 59).
[17]
Failure to consider relevant evidence is an
error of law and therefore invites review on the standard of correctness (Uluk
v Canada (Citizenship and Immigration), 2009 FC 122 at para 16; Esmaili
v Canada (Citizenship and Immigration), 2013 FC 1161 at para 15). On that
standard no deference is owed by the reviewing court, which will undertake its
own analysis of the question and reach its own conclusion.
[18]
Likewise, the alleged selection of an incorrect
legal test speaks to an error of law and therefore is subject to review on the
standard of correctness (, Ruszo v Canada (Citizenship and Immigration), 2013
FC 1004 at para 22; 2010 FC 920 at para 8, Leshiba v Canada (Citizenship and
Immigration), 2011 FC 442 at para 11).
Analysis
Issue 1: Were the RPD’s credibility findings reasonable?
[19]
The Applicants take the position that it was an
error for the RPD to impugn the credibility of the Applicant on the basis of
the information provided at his POE interview. Further, that the RPD appears
to impugn the Applicants’ credibility on the basis that they had not suffered
past persecution. And that the RPD’s finding that the Female Applicant’s
family would have permitted her to remain with her husband’s family is sheer
speculation.
[20]
The Respondent submits that POE notes may be
relevant if they differ markedly from an applicant’s BOC or testimony at the
hearing, which was the circumstance in this matter. Further, it was open to the
RPD make an adverse plausibility finding and to dismiss the Female Applicant’s
explanation that, after March 2011, her family allowed her to remain with the
Applicant’s family, given her own testimony concerning her prior mistreatment at
their hands. It was also open to the RPD to dismiss as unfounded the Female
Applicant’s alleged fear of the army, government and Tamil groups connected
with the government, given her testimony that she had no prior experiences with
any of those groups, which undermined the subjective basis of her fear.
[21]
In my view the RPD’s credibility findings were
reasonable. Assessments of credibility lie within the heartland of the RPD’s
expertise (Tariq v Canada (Citizenship and Immigration), 2015 FC 692 at
para 10; Yener v Canada (Citizenship and Immigration), 2015 FC 618 at
para 15; Giron v Canada (Minister of Employment and Immigration) (1992),
143 NR 238 at 239 (FCA)), and the RPD is best placed to make them (Gougoushvili
v Canada (Citizenship and Immigration), 2013 FC 1214 at para 35; Aydin v
Canada (Citizenship and Immigration), 2012 FC 1329 at para 22; Aguebor v
Canada (Minister of Employment and Immigration) (1993), 160 NR 315 at para
4 (FCA)).
[22]
With respect to the Applicant’s POE evidence,
this was not a situation where the POE interview notes lacked detail or where an
omission or discrepancy was of a minor nature when compared to a BOC or the
claimants’ testimony. The Applicant was very clear on why he sought protection
in Canada, being fear of his wife’s family in Sri Lanka because of their
marriage, and he made absolutely no reference to being abducted, mistreated and
extorted:
Q. Why are you asking for protection in
Canada?
A: I HAVE NO PROTECTION IN MY COUNTRY. IT IS
BECAUSE OF MY MARRIAGE, BECAUSE WE BELONG TO TWO DIFFERENT CASTE SYTEMS. I AM
A KOVIAR AND MY WIFE IS A GOLD SMITH. THE FAMILIES CAME TO KNOW BEFORE WE WERE
MARRIED. MY WIFE’S MOTHER AND HER SISTER STOPPED HER FROM GOING TO SCHOOL AND
HER RELATIVES WERE TRYING TO BEAT ME. BECAUSE OF THIS WE ELOPED AND REGISTERD
THE MARRIAGE. MY WIFE’S FAMILY FOUND OUT AND WENT TO MY FAMILY’S HOUSE WITH
WEAPONS LOOKING FOR ME. WE WERE ALREADY IN ANOTHER CITY, MY WIFE CALLED HER
FAMILY AND LIED AND SAID WE WERE IN COLOMBO WHICH IS ABOUT 12 HOURS AWAY. THEY
LOOKED AROUND FOR US AND WE THOUGHT EVERYTHING WAS OK, MY MOTHER SAID IT WAS OK
TO GO HOME SO WE WENT BACK TO MY MOTHERS HOUSE, MY WIFE’S FAMILY FOUND OUT WE
WERE THERE AND THE NEXT MORNING ALL OF HER FAMILY WERE IN FRONT OF THE HOUSE
THREATENING THAT IF I DON’T LET MY WIFE LEAVE THE HOUSE THEY WOULD KILL ME.
BECAUSE THEY THREATENED TO KILL ME MY MOTHER SENT US TO MY AUNTS HOUSE 8 KMS
AWAY. THEY FOLLOWED US TO MY AUNTS HOUSE AND BECAUSE OF THIS I MADE
ARRANGEMENTS TO BRING MY WIFE BACK TO MY MOTHER AND LEAVE THE COUNTRY. ONCE I LEFT
THE COUNTRY MY WIFE’S FAMILY STARTED HAVING A GOOD RELATIONSHIP, I HAD WARNED
HER THAT THERE MAY BE PROBLEMS BUT SHE WENT TO HER MOTHERS HOUSE. AFTER SHE
WENT TO HER MOTHERS HOUSE SHE LOST A CHID AND I THINK IT HAD TO DO WITH HER VISITING
HER MOTHER. MY WIFE THOUGHT EVERYTHING WAS FINE BUT AFTER SHE LOST THE CHILD
SHE THOUGHT IT WAS BECAUSE OF SOMETHING HER MOTHER DID. AFTER THIS, ARRANGMENTS
WERE MADE AND PROPERTY WAS SOLD AND MY WIFE LEFT THE COUNTRY.
[23]
This was a detailed explanation and clearly
answered why the Applicant was seeking protection in Canada. The RPD was
entitled to make, and reasonably made, an adverse credibility finding based on
the omission from this response of any mention whatsoever of the Applicant’s
subsequent claim in his BOC that he was abducted and abused and his family
extorted by the EPDP and his claim that he feared further abductions. It was
also reasonable for the RPD to reject his explanation of the omission, being
that there were a lot of questions and he was scared (Fernando v Canada
(Minister of Citizenship and Immigration), 2006 FC 1349 at para 20; Gomez
Cordova v Canada (Minister of Citizenship and Immigration), 2009 FC 309 at
para 12).
[24]
The RPD also made a negative plausibility
finding concerning the Female Applicant’s claim in her BOC that, after her
mother and sister beat her and forced her to take abortion tablets so that she
could start a life with a man of her own caste, they would then allow her to simply
leave and go to reside with the Applicant’s mother.
[25]
The Female Applicant’s testimony was that her
mother and sister made her drink a medicine to abort, that they were keeping
her under house arrest, even accompanying her to the bathroom, but that when
they were busy she pretended that she was going out and then went to the
Applicant’s mother’s house. During the two or three months she stayed there
before leaving the country her mother threatened her, caused her problems and
asked her to come back, but her mother-in-law prevented this, simply by asking
the relatives to please stop coming to the house. After that, they came by only
every two weeks (CTR, pp 497-98).
[26]
The RPD found that it was not credible that the
Female Applicant’s family would just allow her to remain with the Applicant’s
mother. Nor did it accept her explanation that they left her alone when the
Applicant’s mother asked them to please do so, in light of the prior
allegations that her uncles and cousins had attended, armed, at the Applicant’s
mother’s house and threatened to kill the Applicant, and that her mother and
sister had beaten her and forced an abortion on her.
[27]
Plausibility findings should be made only in the
clearest of cases, such as those in which the facts as presented are outside
the realm of what could reasonably be expected (Valtchev v Canada (Minister
of Citizenship and Immigration), 2001 FCT 776 at para 7). They should be
based on the evidentiary record, not on speculation (Lacko v Canada
(Citizenship and Immigration), 2015 FC 512 at para 10). Here the
evidentiary basis of the RPD’s plausibility finding was the Female Applicant’s
own testimony concerning the prior behaviour of her family. Based on the
Female Applicant’s own evidence, in my view this finding was reasonably open to
the RPD.
[28]
Finally, as to the Applicants’ submission that
the RPD appeared to impugn their credibility on the basis that they had not
suffered past persecution, the Applicants refer to paragraph 14 of the RPD’s
reasons in support of that submission. At that paragraph the RPD states that
the Female Applicant alleges fear of the army, government and Tamil groups
connected with the government, but, when asked if she had any experiences with
any of those groups, she testified that she did not.
[29]
This is an accurate description of the evidence
by the RPD. The Applicants’ BOC states that they feared returning to Sri Lanka
because they feared arrests, detentions and mistreatment from the authorities,
including sexual harassment of the Female Applicant. Her testimony before the
RPD was that she feared the army and the government and the Tamil groups
connected to the government and her relatives. When asked why she held that
fear, she stated it was because those entities would suspect that the
Applicants are terrorists, as they live in the north and are a young woman and
man. When asked if she had any experience with the army, government and Tamil
groups connected to the government, she replied “no”.
When asked why she thought she would be a target, she replied because they
think young women and men are terrorists and that she knew this because people
like her got into problems, they are taken and disappear, which she knew
because people in her village had said so.
[30]
The RPD made no specific credibility finding on
this issue. I am also not convinced that, as the Applicant submits, the RPD
impugned their credibility on the basis that they had not suffered past
persecution. In any event, as the jurisprudence cited by the Applicant
suggests, the relevance of evidence of past persecution is that it may support
a well-founded fear of persecution in the future. Therefore, as the Respondent
asserts, it was open to the RPD to dismiss as unfounded the Female Applicant’s
alleged fear of the army, government and Tamil groups connected to the
government, given her testimony that she had no prior experiences with those
groups. While this may not go to credibility, it brought into question the
subjective basis of her alleged fear.
[31]
In conclusion, the RPD’s credibility findings
were reasonable and do not require intervention by this Court.
Issue 2: Did the RPD fail to consider relevant evidence or
the Applicants’ claims on the basis of cumulative grounds or mixed motives?
[32]
The Applicants submit that although the RPD
found them not to be credible it did accept that they are Tamil, that they are
from Northern Sri Lanka, that they would be failed asylum seekers returning to
Sri Lanka and that the Female Applicant is a woman. Accordingly, the RPD was
required to assess the claim on the basis of those four factors. This is
because the objective documentary evidence may be such that the claimants’
particular circumstances make them persons in need of protection despite that
fact that the RPD has found them to lack credibility.
[33]
The Applicants then recite, at length, the
documentary evidence that was before the RPD with respect to Tamils generally
and Tamils from the north as well as with respect to failed asylum seekers and
women in Sri Lanka. The Applicants assert that the RPD erred by ignoring this
evidence, which directly contradicted its conclusion. The RPD further erred in
examining the four bases to the claim in isolation from one another, rather
than on a cumulative basis, and in accordance with the doctrine of mixed
motives.
[34]
The Respondent submits that the RPD assessed the
Applicants’ allegation that they were at risk of persecution on account of
their status as Tamils from the north of Sri Lanka and failed asylum seekers.
It also assessed the Female Applicant’s claim that she is also at risk of
persecution based on her gender. The risk analysis was cumulative. The RPD
considered the country conditions evidence concerning returnees. It observed
that this evidence was mixed but that some returnees who are perceived as
either LTTE members or supporters would face detention or torture upon arrival
in Sri Lanka. However, the Applicants were not likely to be perceived as
either LTTE members or supporters. This was based on their testimony that they
had no connection to the LTTE in Sri Lanka or Canada. They also did not
possess any of the cumulative risk factors identified in the country
conditions.
[35]
As this Court has repeatedly stated, it is not
necessary for the RPD to refer to every piece of evidence in the record and
will be presumed to have taken all of the evidence into consideration.
However, when there is relevant contradictory evidence that is unacknowledged
by the decision-maker, a reviewing Court may conclude that the RPD overlooked
the contradictory evidence when making its finding of fact (Goman v Canada
(Citizenship and Immigration), 2012 FC 643 at para 13; Urrea Bohorquez v
Canada (Citizenship and Immigration), 2011 FC 808 at para 13; Cepeda-Gutierrez
v Canada (Minister of Citizenship and Immigration) (1998), 157 FTR 35 at
para 17; Florea v Canada (Minister of Employment and Immigration), [1993]
FCJ No 598 at para 1 (FCA) (QL)).
[36]
In this matter the RPD acknowledged that counsel
for the Applicants had drawn its attention to documentary evidence wherein
various sources, including the Canadian government, expressed concerns about
the poor treatment of Tamils, particularly Tamil returnees. The RPD
acknowledged that the documentary evidence as regards the returnees was mixed,
with evidence that some returnees who are perceived as either LTTE members or
supporters would face detention or torture upon their arrival at the airport in
Sri Lanka. It noted that a recent Response to Information stated that, as
reflected in the UK Operation Guidelines note for Sri Lanka, the UK Border
Services Agency accepted that ill treatment amounting to torture does exist and
that certain categories of individuals, by virtue of their profile, or by
cumulative risk factors, might be at risk. The Agency did not accept that
Tamils in general would be at risk on return.
[37]
The RPD found that the documentary evidence
identified that those who had an association with the LTTE in Sri Lanka, actual
or perceived, were more likely to be targeted upon return. However, thatthis
was not the case for the Applicants, who were fleeing the Female Applicant’s
family. After considering all of the documentary evidence, the RPD agreed with
the British authorities that the mere fact that returnees with certain profiles
or cumulative risk factors experienced ill treatment, including torture, did
not imply that Tamils in general were at risk. The RPD specifically noted that
the Female Applicant alleges a fear due to her being young and Tamil but
reached the same conclusion that her profile did not put her at risk.
[38]
The Applicants submit that their claim is based
on four factors: they are Tamils, they come from the north of Sri Lanka, they
are failed asylum seekers and the Female Applicant is a woman. In my view, the
RPD took each of these factors into account in its analysis. The RPD was also
aware that cumulative factors could, in some cases, place an individual at
risk. Here, however, the Applicants point to no evidence that suggests that
these four factors together would put them at risk of a well-founded fear of
persecution in these circumstances.
[39]
In my view, the RPD reasonably considered the
documentary evidence and assessed the Applicants’ risk.
Issue 3: Did the RPD err in its analysis of generalized
risk?
[40]
The Applicants submits that there is a clear
nexus to the Convention by reason of perceived political opinion, the EDPD
being a political party with a political agenda. Therefore, any refusal to
accede to their demands would be seen as indicative of opposition to that
political agenda. Further, that the RPD misunderstood this aspect of the claim
because the Applicants do not fear extortion per se, but rather the
persecutory consequences of a failure to accede to extortion demands.
Therefore, the claim should have been considered under s 96.
[41]
The Respondent submits that the fact that the
Applicant’s father paid the ransom demanded by the EPDP does not create a nexus
to any s 96 ground. The Applicant and his family were the alleged victims of
crimes of abduction and extortion and he was released when the ransom was
paid. There is no evidence that he was abducted for any reason other than the
EDPD’s belief that his father, a German citizen, had money. Further, the
hypothetical refusal to pay further extortion demands cannot be construed as an
act of political resistance to the EDPD (Wilson v Canada (Citizenship and
Immigration), 2013 FC 103 at para 5). This is particularly so in this case,
given the Applicant’s own evidence that he was allegedly targeted because of
his father’s perceived wealth, not for any reasons related to the EPDP’s fulfilment
of its political agenda. Further, the circumstances of the Applicant’s alleged
kidnapping do not meet the requirements of s 97(1)(b)(ii) of the IRPA (Paz
Guifarro v Canada (Citizenship and Immigration), 2011 FC 182 at para 30).
[42]
I would first note that I have already found the
RPD’s credibility assessment to be reasonable. As the RPD found that the
abduction of the Applicant by the EPDP did not occur, the Applicants’
submissions as to a nexus to a s 96 ground on the basis of perceived political
opinion cannot succeed.
[43]
In any event, I agree with the Respondent that
there is no evidence that the Applicant was abducted for any reason other than
perceived wealth, which does not give rise to a nexus to a particular social
group for the purposes of s 96. Nor does a hypothetical refusal to pay a
future ransom demand create a nexus by way of a perceived political opinion (Jawad
v Canada (Citizenship and Immigration), 2012 FC 1035 at para 12). The RPD
reasonably found that the Applicants’ fear of the Female Applicant’s family,
who do not approve of their marriage, are family difficulties or vendettas, is
not a link to the Convention (Talanov v Canada (Citizenship and Immigration),
2014 FC 881 at para 9).
[44]
Further, there was no error in the RPD’s s 97
generalized risk analysis which concluded that, were the Applicant to be
believed, the risk he would face upon return to Sri Lanka would be a
generalized and prevalent risk faced by a subgroup of the population, namely, people
perceived to be wealthy; as such, the risk would be excluded by s 97(1)(b)(ii)
(Rodriguez Perez v Canada (Citizenship and Immigration), 2009 FC 1029 at
para 35).
Issue 4: Did the RPD apply an incorrect test for its s 96
risk assessment?
[45]
The Applicants also submit that the RPD
articulated an incorrect test in its analysis of their s 96 risk as returnees.
[46]
The Respondent submits that the correct test was
stated near the start of the reasons and that it is clear from a review of the
entirety of the reasons for the decision that the RPD applied the correct test
for refugee protection.
[47]
In my view, the RPD did not apply an incorrect
test. At paragraph 5 of its reasons it stated that the Applicants had not
satisfied the burden of establishing a serious possibility of persecution for a
Convention ground or that they would be personally subjected, on a balance of
probabilities, to a danger of torture, or a risk to life or a risk of cruel and
unusual treatment or punishment upon return to Sri Lanka. Therefore, they were
neither Convention refugees nor persons in need of protection pursuant to ss 96
and 97 of the IRPA. This was restated in paragraph 24.
[48]
The Applicants submit that reference to those “more likely” to be targeted in paragraph 21 of the
reasons gives rise to the error. Paragraph 21 reads as follows:
The documentary evidence speaks to the
United Kingdom deportation of failed Tamil claimants and identifies that those
who had an association with the LTTE in Sri Lanka (actual or perceived) in
their own right and/or through their immediate family members before they went
to the United Kingdom were more likely to be targeted by upon return. This is
not case for these claimants; they were fleeing the female claimant’s family
members.
[footnote omitted]
[49]
In my view, this paragraph simply describes the
documentary evidence; it does not adopt an incorrect test. Nor does the RPD
suggest at paragraph 22 of its reasons, as the Applicants submit, that the
Applicants must prove that all Tamils are at risk. Rather, the RPD is simply stating
its conclusion, on the review of the documentary evidence, that only returnees
of a certain profile would be at risk upon return to Sri Lanka, which does not
mean that Tamils in general would be so.
[50]
In conclusion, it is clear from a review of the
decision in whole that the RPD applied the correct test.
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